Subpoena power key to Sheriff's Department oversight, but it's complicated

The recent indictments of top leaders of the Los Angeles County Sheriff's Department are a timely reminder that the department has operated for too long with little regular and meaningful public review. As members of a working group complete the task of designing an oversight commission and prepare to forward their recommendations to the Board of Supervisors, they should keep in mind that there can be no oversight worthy of the name — no ability to assess policies and operations or to discover and spotlight festering problems — without access to internal department information. To secure such access, and to ensure that the sheriff cannot easily revoke it, the commission or its staff must be able to subpoena documents or have some equivalent power, enforceable in court, to compel the production of data and records.

Subpoena power has become the primary bone of contention in the many hearings and town hall meetings of the seven-member working group, revealing widely differing attitudes and assumptions about what oversight is or ought to be, and in fact whether it can actually exist under a state Constitution that makes the sheriff an independently elected official, subject only to the will of the voters at reelection time, the budget discipline (if any) exercised annually by county supervisors and, as a last resort, the review and orders of the courts.

Sheriff Jim McDonnell sees the commission as advisory — a useful tool to assist him in ferreting out problems in his department and maintaining a productive relationship with the public, while providing a forum in which to air and respond to grievances. The relationship between the sheriff and the oversight panel would be cooperative rather than adversary, and subpoena power would be unnecessary

Such a view falls short of the muscular oversight needed, although it does take into account some compelling legal and political facts: Deputy records are broadly shielded from public view under state laws intended to protect peace officers from politically motivated discipline. Deputies, their unions and, more to the point, the courts are likely to reject any path that would result in an individual's records becoming public — and that includes subpoena power, if the officials with that power have the discretion to make their findings part of the public record.

There are many shades and iterations of arrangements that would allow the commission access but keep documents from the public. Some already have been tried. An Office of Independent Review, for example, was granted broad access but became in effect the department's lawyer, ensuring that documents were privileged and remained confidential, but at the cost of the office's independence. It was wrapped up last year in favor of an inspector general, who currently is under no compulsion to keep documents from the public — but who, consequently, without subpoena power, has so far been granted only limited access to department records.

Sheriff's officials and leaders of the deputies' unions have discussed a type of contract under which documents could be shared with the commission but still kept from the public eye. To be acceptable, such an agreement must be enforceable in court and must not allow the department the discretion to withhold or delay production of any records. If it accomplishes much the same thing as subpoena power, and is as enforceable and as effective, it makes little difference what it is called.

Yet how could a commission, expressly designed to exert public oversight, agree to any kind of arrangement that keeps information from the public?

Activists whose family members or who themselves have been subject to abuse by deputies on patrol or in the jails, and many others troubled by the high-profile deaths nationwide of unarmed suspects in police custody over the last year, envision a commission with power to publicly review individual incidents and to discipline deputies, or at least to assess the adequacy of the department's discipline

But that approach asks too much of a panel that would operate under current state law. At least in the short term, the sheriff's oversight commission should be expected to focus on systemic issues and patterns of abuse and discipline rather than individual cases. It cannot itself be all the missing pieces of the reform puzzle: a reformed civil service panel; a more vigorous grand jury; a more attentive Board of Supervisors.

The balance between gaining useful access to department documents and preventing confidential material from becoming public can be met by investing subpoena power in the commission's investigative staff: the inspector general. The I.G. could study the documents and present to the commission, and therefore to the public, reports outlining the department's failures and recommending remedies while preventing the public release of records of individual deputies.

Subpoena power will require first a vote by the Board of Supervisors and then by Los Angeles County voters. The earliest the public could expect to consider the question is a year from now. Advocates for a less formal approach note that a memorandum of agreement could be in place long before then.

But the two paths are not mutually exclusive, and access to the internal records of an office whose sole purpose is to serve the public, and is supported by public money and whose leader is elected by the public, should not depend solely on negotiations between the department and the deputies' union. If winning subpoena power for an oversight commission will take time, there is no time like the present to begin the quest.